Why a Chief Justice Would Think of Resigning
by Manuel L. Quezon III
On March 31, an anniversary came and went, with little public attention paid to it. The anniversary was of the handing down of a decision, Javellana vs. Executive Secretary, by the Philippine Supreme Court on March 31, 1973.
Joaquin Bernas, one of the drafters of the present Philippine Constitution, and who wielded great influence in the Aquino government which decided to abandon the previous constitution, tells us, in a nutshell, why that decision was so historic. He wrote, “A majority of the Supreme Court were of the view that the constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the requirements of the 1935 Constitution. In the end, however the court accepted the cryptic conclusion that the new constitution was already in effect….” The 1935 Constitution, under which Marcos was elected twice and imposed martial law on Sept. 23, 1972, provided that a new constitution would require a formal plebiscite. Marcos, realizing the public was not inclined to approve a new charter in secret ballot, arranged a rigged public referendum to approve a constitution nominally approved by a Constitutional Convention elected in 1971 but which Marcos had single-handedly written.
Ferdinand Marcos, in his diary, put forward what he hoped would be posterity’s explanation for why the Supreme Court acted the way it did. In an entry dated Sept. 24, 1972, he wrote, “I asked Justices Claudo Teehangkee, Antonio Barredo, Felix Macasiar and Felix Antonio to see us. They insisted that the government should submit to the Supreme Court for the court to review the constitutionality of the proclamation of martial law, Proclamation No. 1081.”
He went on to recount, “So I told them in the presence of Secretaries Ponce Enrile and Vicente Abad Santo as well as Sol. Gen. Estelito Mendoza that if necessary I would formally declare the establishment of a revolutionary government so that I can formally disregard the actions of the Supreme Court.”
With a kind of malicious glee, he then described how the Supreme Court folded in the face of his bluff: “They insisted that we retain a color of constitutionality for everything that we do.”
The next day, he crowed in his diary, “…It is indeed gratifying that everyone now finds or discovers I am some kind of a hero!” and made this (very true) observation: “There is nothing as successful as success!”
Yet Marcos achieved a victory in terms of any potential challenge to the legality of his imposing martial law; but he continued to worry about a challenge to his promulgating a new constitution. This was because of the consensus among the justices that Bernas described above.
On Jan. 27, 1973, Marcos wrote in his diary, “…Chief Justice Concepcion is sick in the hospital and may not be able to attend the dinner on Monday.” According to Marcos, “It is apparent that the other justices are in favor of dismissing the petition questioning the validity of the ratification of the new constitution.”
And again, writing for posterity, he painted a picture of a court more concerned about the jobs of the justices than any real point of law: “But they want to be assured of their continuance in office under the new constitution with new appointments….” So Marcos said he basically told the justices they’d been overtaken by events: “But everybody else has accepted the new constitution and as we put it in the dinner conference we held tonight, how do the justices expect us to ‘unscramble the eggs already scrambled’?”
And in a note to himself, he reminded himself to treat the justice he viewed with contempt, with kid gloves: “We have to handle them with finesse as the Supreme Court might become the rallying point of the opponents of reform.”
On Jan. 29, 1973, he patted himself on the back in his diary, “the dinner with the justices without Chief Justice Concepcion who is sick in Sto. Tomas Hospital turned out well.” You can tell he was gloating when wrote, “Casually I turned into the problems the country was facing requiring an unquestioned position of leadership for negotiations. As Justice Fred Ruiz Castro said, ‘I get the message, Mr. President.’” By April 2, he was able to write, matter-of-factly, “…Dr. de Vega has just written me that the Supreme Court has resolved the pending suit in the new constitution and as of this moment is distributing its decision in favor of our position —6-4.”
Marcos never caused the publication of his diary during his lifetime, but the image he proposed, of cowardly and conniving justices, is one the public adopted anyway. Javellana vs. Executive Secretary has gone down in Philippine history as a defining moment: one in which a president’s efforts to grab power succeeded because of the timidity of the only remaining institution left to challenge it lost its nerve.
One of the present justices of the Supreme Court, Antonio Carpio, writing last January in Newsbreak Magazine, recalls, “I was a second-year student at the U.P. College of Law when the Supreme Court handed down Javellana. In my eyes as a law student, the gods of Padre Faura (where the Supreme Court is located), supposedly the last bulwark of democracy in our country, fell from their high pedestals the day they decided Javellana. Now, whenever a major constitutional issue comes up before the Court, I always ask myself and even some of my colleagues, could this be our Javellana…?”
The chief justice at the time Javellana was decided, Roberto Concepcion, took a leave of absence from his position after the decision was handed down, effectively leaving office 50 days prior to his retirement date. He became a critic of the Marcos government.
Last week, the Philippine Supreme Court handed down a decision, Neri v. Senate Committee, which critics, including Bernas, have declared a “dangerously crippling decision,” as it limits the ability of the legislature to ask questions of executive officials. Chief Justice Reynato Puno (who, along with Carpio, dissented with the decision) has gone on record criticizing the decision of his colleagues; and there is talk that if the Supreme Court insists on upholding its decision, he will resign. Why he might be thinking of this can only be understood with reference to the 1973 actions of the court.